Behind Trump's secret plan to reshape federal appeals courts

By
CHARLIE SAVAGE
New York Times

November 11, 2017 — 5:29pm

Al Drago, New York TimesDon McGahn, the White House counsel, with President Donald Trump and Stephen Miller, right, a senior adviser, during a swearing-in ceremony in the East Room of the White House in Washington, Jan. 22, 2017. McGahn, instructed by Trump to maximize the opportunity to reshape the judiciary, organized a secret battle plan to fill the federal appeals courts with young and deeply conservative judges.

WASHINGTON – In the weeks before Donald Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where Donald McGahn, the soon-to-be White House counsel, filled a whiteboard with a secret battle plan to fill federal appeals courts with young, conservative judges.

McGahn, instructed by Trump to maximize the opportunity to reshape the judiciary, mapped out potential nominees and a strategy, according to two people familiar with the effort: Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Trump — like Indiana, Michigan and Pennsylvania — could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for district courts, where legal philosophy is less crucial.

Nearly a year later, that plan is coming to fruition. Trump has appointed eight appellate judges, the most this early in a presidency since Richard Nixon, and on Thursday, the Senate Judiciary Committee sent a ninth — Trump’s deputy White House counsel, Gregory Katsas — to the floor.

Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scant power to stop them.

Most have strong academic credentials and clerked for well-known conservative judges. Confirmation votes for five of the eight new judges fell short of the former 60-vote threshold to clear filibusters, including John Bush, a chapter president of the Federalist Society, the conservative legal network, who wrote politically charged blog posts; and Stephanos Bibas, a University of Pennsylvania law professor who once proposed using electric shocks to punish people convicted of certain crimes, although he later disavowed the idea. Of Trump’s 18 appellate nominees, 14 are men and 16 are white.

While the two parties have been engaged in a tit-for-tat escalation of hardball politics over judicial nominations since the Reagan years, the Trump administration is completing a fundamental transformation of the enterprise. And the consequences may go beyond his chance to leave an outsize stamp on the judiciary. When Democrats regain power, if they follow the same playbook and systematically appoint outspoken liberal judges, the appeals courts will end up as ideologically split as Congress is today.

“It’s such a depressing idea, that we don’t get appointments unless we have unified government, and that the appointments we ultimately get are as polarized as the rest of the country,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “What does that mean for the legitimacy of the courts in the United States? It’s not a pretty world.”

For now, conservatives are reveling in their success. During the campaign, Trump shored up the support of skeptical right-wing voters by promising to select Supreme Court justices from a list McGahn put together with help from the Federalist Society and the conservative Heritage Foundation. Exit polls showed that court-focused voters helped deliver the president’s narrow victory. Now, he is rewarding them.

“We will set records in terms of the number of judges,” Trump said recently, adding that more nominees were in the pipeline. Standing beside Senate Majority Leader Mitch McConnell, R-Ky., he said, “There has never been anything like what we’ve been able to do together with judges.”

The 12 regional appeals courts wield profound influence over Americans’ lives, getting the final word on about 60,000 cases a year that are not among the roughly 80 the Supreme Court hears.

Nan Aron, of the liberal Alliance for Justice, said her group considered many of Trump’s nominees to be “extremists.” But conservatives, who have rallied around Trump’s nominees as a bright spot of unity for the Republican Party, see them as rock stars who will interpret the Constitution according to its original meaning.

And they see tremendous opportunity in the fact that Trump is the first Republican president whose nominees can be confirmed by simple-majority votes. He started with 21 open appellate seats because after Republicans gained control of the Senate in 2015, they essentially shut down the confirmation process. Six additional appellate judgeships have opened since his inauguration.

“What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut,” said Leonard Leo, an informal adviser to Trump on courts who is the executive vice president of the Federalist Society.